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Opinion | Commentary - Distribution

If you like Prop 65, you're going to love what’s coming next

Over the past few months, the upcoming Prop 65 requirements have garnered extensive attention in the auto care industry. Going into effect on August 30th, the regulations will require companies that sell products that meet a certain exposure level for either cancer or reproductive thresholds to include new warnings on the label as well as on the websites where the products are advertised for sale.

If you are reading this article and your company sells products in California and is not in the process of implementing a plan to comply with the new Prop 65 requirements, stop reading this article and get help now. You are behind. A good place to start is on the Auto Care website where you will find some critical compliance information regarding the new requirements. You might also want to get an attorney that is well versed in this area to make sure that once you have a plan, you are doing everything right. I know it’s an additional expense, but it will be money well spent to avoid having to do battle with the stampede of trial attorneys that will surely descend on California retail establishments searching for companies that do not follow the letter of the law.

If your company is ready for Prop 65, you will not be able to take much of a breather. New, broader ingredient disclosure requirements are on their way. Under the California Cleaning Products Right to Know Act, signed by the California governor on October 15, 2017, manufacturers of general cleaning products, air care products and certain automotive products sold in the state will need to disclose intentionally added ingredients on product labels and on their websites. Automotive products covered by the new law include any consumer product that is labeled to indicate the purpose of the product is to maintain the appearance of the vehicle including products intended for washing, waxing, polishing, cleaning or treating the exterior or interior surfaces of motor vehicles.

The act further prohibits retailers from selling products in California that are not compliant with the new disclosure mandate. The new labeling requirements become effective in 2020 for online disclosures and in 2021 for the product label, although chemical ingredients that appear on the Prop 65 list need not be disclosed online or on labels until 2023.

Companies will have two options for information that must be disclosed on the label: They may list only the chemicals that are intentionally added to the product and appear on one of twenty-two regulatory lists identified in the Act including the list of substances that are required to comply with Prop 65; or, the company may disclose all intentionally added ingredients in the product other than ingredients that qualify as confidential business information (CBI). It should be noted that ingredients cannot be claimed as CBI if they appear on one of the 22 regulatory lists that were mentioned earlier.

Regarding online disclosures, the Act requires companies to list every intentionally added ingredient except for CBI and fragrance ingredients in descending order of predominance, as well as nonfunctional constituents that are present in the product in concentrations at or above .01 percent. The website must also state the functional purpose of each intentionally added ingredient and provide links to the regulatory lists on which the chemical ingredients appear.

While the California law is pretty extensive, it is important to note that New York has finalized a similar regulation, the New York Household Cleansing Product Disclosure Program, which impacts household cleaning products that will require disclosure of ingredients on a manufacturer’s web site. While the New York program shares many of the same elements as the California regulation, the New York law also requires that companies list impurities or contaminants present only as an unintended consequence of manufacturing. This will put a significant amount of ambiguity into a company’s compliance efforts in the state. Further, it should be noted that New York’s ingredient law goes into effect in 2019 which is just around the corner.